Criminal Defense of Immigrants

Both parts of the illicit trafficking aggravated felony definition require that the conviction be a felony.  There has been quite a bit of controversy, however, on how to define “felony” in this context.  There are three factors that can contribute to the conclusion that a conviction is a felony conviction: (1) whether the convicting jurisdiction labels the conviction a felony or misdemeanor; (2) the maximum sentence to custody possible for the conviction under the law of the convicting jurisdiction; and (3) the level of the offense if it had been prosecuted in federal court (“hypothetical federal prosecution test”).  See § 10.87, supra.  Counsel must therefore bear in mind the rules of the jurisdiction in which the case arises.  Some of these issues have recently been resolved by the United States Supreme Court.  See § 19.58, infra.